Privacy Issues in the Community College Workplace

j. Inability to Prevent Newspaper from Publishing or Printing Confidential Peace Officer Personnel Information that May Have Been Illegally Obtained In Association for Los Angeles Deputy Sheriffs v. Los Angeles Times Communications LLC 343, a California court of appeal held a police union could not prevent the Los Angeles Times from publishing or printing confidential peace officer personnel information that may have been illegally obtained. The court determined that no admissible evidence had been presented that the Times stole the information and a long line of federal and California cases protected the press under the First Amendment when it may have published or disclosed illegally-obtained content. The court further found that an injunction preventing the disclosing of the information was an unconstitutional prior restraint and that any privacy right processed by the deputies in their employment application information belonged to them and could not be asserted by their union. 3. U NION A CCESS TO P ERSONNEL F ILE AND C ONTACT I NFORMATION A union is generally entitled to see an employee’s personnel file if the employee consents to the disclosure. If the employee does not consent to the disclosure, a balancing test is applied. In Detroit Edison Co. v. NLRB , 344 the United States Supreme Court held that an employer did not commit an unfair labor practice by refusing to disclose, without a written consent from individual employees, aptitude test scores linked with employees’ names in light of the sensitive nature of the testing information. The court stated:

A union’s bare assertion that it needs information to process a grievance does not automatically oblige the employer to supply all the information in the manner requested. The duty to supply information under Section 8(a)(5) [of the NLRA] turns upon the circumstances of the particular case, and much the same may be said for the type of disclosure that will satisfy the duty. 440 U.S. at 314-15, 99 S.Ct. at 1131 (citations omitted).

Thus, a balancing is required between the union’s need to have information so that it can effectively carry out its functions as bargaining representative of the employees and the employee’s legitimate right to privacy and the employer’s interest in maintaining the confidentiality of his or her personnel file. The relevancy of the information sought by the union, the employee’s privacy interest in the information sought and the safeguards provided to he employer to protect that privacy interest are the principal elements to be considered. 345 Regarding employee home addresses, the California Supreme Court determined in County of Los Angeles v. Los Angeles County Employee Relations Commission that a public employer must disclose home contact information for all bargaining unit members (even non-union members) to the representatives for the bargaining unit. 346 It held that the failure to provide relevant information about non-member employees violated the County’s obligation under the Meyers- Milias-Brown Act (MMBA) to bargain in good faith. The Court noted that the parties could negotiate or the Commission could adopt specific procedures to allow non-members to opt-out of providing their home contact information.

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 107